Ontario farm workers can unionize

Farm workers across the province are celebrating the fruits of a major legal victory after the Ontario Court of Appeal ruled they have the right to unionize.

In a 3-0 decision yesterday, the court said the Agricultural Employees Protection Act, which prevents farm workers from collective bargaining, “substantially” impairs their right to freedom of association under the Charter of Rights and Freedoms.

The decision affects an estimated 32,000 agricultural workers in Ontario, including 16,500 migrant farm workers who come from Mexico and the Caribbean each year.

Xin Yuan Liu, one of three former mushroom plant workers who joined forces with the United Food and Commercial Workers Union to challenge the law, said the ruling vindicates his faith in the Canadian justice system.

“I came here thinking Canada was fair for everybody and now the law says this,” Liu said yesterday on a brief break from his job at a construction site in Schomberg.

Liu and his wife emigrated from China in 1989 and started working at Rol-Land Farms Ltd., in Kingsville in 1993. They quit after his efforts to organize 270 mushroom farm workers made working life a misery.

Although a majority of employees voted to join the Food and Commercial Workers, the company “has continuously ignored” the union’s attempt to collectively bargain and that experience “does not appear to be unique in the Ontario agricultural industry,” Ontario Chief Justice Warren Winkler wrote in yesterday’s decision.

While most Ontario workers have had the right to join unions since 1943, farm employees have been excluded because agriculture has been considered unique; farms need labourers who can work long hours during harvest time and adapt to changing weather, and consumers need a reliable food supply.

During a hearing before the appeal court earlier this year, however, the union said it is not seeking a right to strike on behalf of farm workers.

Farmers have long fought unionization by calling it the death knell of family farms, said Kerry Preibisch, a University of Guelph professor on sabbatical at the Sussex Centre for Migration Research in England.

“Most farm workers are not on family farms,” Preibisch said yesterday.

“The structure of agriculture in Canada has changed significantly in the last 15 years. There are fewer and bigger farms. It’s an embarrassment to the government that it has taken this long.”

Not true, says Ken Forth, labour chair of the Ontario Fruit and Vegetable Growers’ Association, which represents 8,500 of the 35,000 farms across Ontario.

“All farms in Ontario are owned by family farmers and they’re already having a tough time,” Forth said after yesterday’s ruling.

“The general public wants cheap food and we have to produce it as cheaply as possible to compete with imports from Mexico and China grown under dubious circumstances. We don’t set prices, the world market does.”

Paul Cavalluzzo, a lawyer representing the union, told the court earlier this year that farming is increasingly dominated by large-scale “agribusiness,” with some mushroom plants and chick hatcheries virtually indistinguishable from factories.

Many workers in these plants labour for low wages under dirty and dangerous conditions, he argued.

Mindy Leng, 27, who worked at a mushroom plant for three years, said yesterday that she’d never go back and to this day won’t eat mushrooms.

“You work eight to 12 hours a day, seven to 14 days straight. The floor pickers sometimes have to crawl or spend the day bending over.”

The union was losing its constitutional challenge to the law until last year, when the legal landscape shifted. In a June 2007 decision involving B.C. hospital workers, the Supreme Court of Canada ruled that collective bargaining was a constitutionally protected right.

That finding formed the backbone of the appeal court’s decision yesterday.

The court gave the province 12 months to come up with a new law that balances the rights of agricultural workers with concerns about the survival of the family farm. In New Brunswick, for example, farms with fewer than five employees are exempt from the labour relations regime.

“It is arbitrary to exclude all agricultural workers from a collective bargaining scheme on economic grounds, where collective bargaining has been extended to almost every other class of worker in Ontario,” said Winkler, writing on behalf of a panel that included Justices Eleanore Cronk and David Watt.

The issue of agricultural workers being excluded from Ontario’s labour relations regime first came before the Supreme Court of Canada in 2001.

The court said denying farm workers the right to organize violated their right to freedom of association and told the province to enact legislation giving them this protection.

The government’s response was the Agricultural Employees Protection Act, which allows farm workers to form employee associations, but doesn’t require employers to bargain over wage or job conditions and includes no mechanism for resolving labour disputes.

The union launched a court challenge two years ago, arguing the law was unconstitutional.

With yesterday’s ruling, Stan Raper of the Food and Commercial Workers said the union can press ahead with a civil suit filed on behalf of Cambodian-born Canadians fired by Rol-Land.